This is a direct copy, an excerpt from the Appellant Brief, from the Arguments Section, regarding what the jurors knew, or might have known.
not attempting to provide a comprehensive catalogue of all
that the jurors "knew", it is important here to at
least point out the most prejudicial examples of this
Steinkirchner, who is a certified public accountant, noted
that he had heard some theories or gossip to the effect that
there might have been some link between the murders and the
fact that Linda Miracle's ex-husband was a truck driver who
might have been involved in "drug runs."(3405)
Richards stated that she had learned that Linda Miracle's
diary had been found and destroyed ó a fact which did not
reach the newspapers until after the trial commenced.
Adams was aware that a neighbor had seen the Defendant
carrying things out of the houses in question on the night
of the murders. (footnote: To
understand the prejudice here, it is important to note that
Lubinski was not only aware that a gun, which he believed to
be the murder weapon, was found under the Defendant's house,
but also spoke of the barbed wire with which the victims
were bound having been located in the Defendant's car.
to say, not only was no wire found in the Defendant's car,
but there was never any barbed wire involved in the case.
the situation in Murphy v. Florida, supra, where the very
fact that the crime was committed, and the trial held, in
the large metropolitan area of Miami Beach, helped to
minimize the potential prejudice from the heavy pretrial
publicity, the small size of Mesa County only exacerbated
the prejudice to the Defendant here. The prejudicial effect
is manifested a number of ways among the fourteen jurors.
First, at least three
of the jurors were personally acquainted with some of
the (footnote: The
three are Ms. Johnson, Ms. Noel, and Mr. Lubinski.) witnesses.
a number of jurors referred to the attitudes of and
discussions with family, friends, and co-workers. Mr.
Steinkirchner, who noted that he had linked these murders in
his mind with the other unsolved Grand Junction murders,
pointed out that one of his secretaries had told him that
all of the adult victims in these cases had been classmates
in school. (3411) Also,
many of his clients had often talked to him about this case,
and "everybody had a theory" about the murders.
Richards, who stated she had no fixed opinion as to the Defendant's
guilt, noted however that her family has a definite opinion
that the Defendant was guilty, and she had been exposed to
the family discussions. (4126, 4162)
Gonzales had had numerous discussions about the case with
his co-workers over coffee. He noted that there was a
general feeling in the community against the Defendant.
Noel had had many private discussions about the case and had
followed the case very closely because her mother lived only
a few blocks from the Defendant. (6613-14)
Simonson had also discussed the case with his friends and
Mr. Lubinski, a teacher, noted that there was a strong
feeling that the Defendant was guilty in the teacherís
all of the jurors seated stated that they either had no
opinion as to the Defendant's guilt or could put any such
leaning or opinion aside, it is still necessary to explore
the answers given to these questions. The United States
Supreme Court, in both Murphy v. Florida, supra, and Irvin
v: Dowd, supra, recognized that such assurances from
prospective jurors should not automatically be taken at face
value, when there is evidence that pretrial publicity may
have had an adverse effect on the jury panel.
seven jurors who admitted to some leaning or opinion on the
question of guilt showed varying levels of commitment to
that position. Mr.
Richards admitted that she experienced feelings of relief
when the Defendant was arrested because she believed the
guilty person had been caught. (4151-52)
And Mr. Simonson testified that he had formed an
opinion that the Defendant was guilty at the time of the
arrest, (7020) that
this leaning had lasted until the time of trial, and it
would require some evidence to erase that leaning from his
excellent example of the problems inherent in picking a
truly impartial jury in this case, given the publicity, the
rumors and gossip, and the involvement of the community, is
presented in Mr. Steinkirchner's testimony. After
being questioned by the court and stating that he held no
opinion as to the Defendant's guilt, (3373)
he was questioned by defense counsel. After
explaining that he had heard a lot of rumors and that
everyone he met had theories, he was again questioned about
having an opinion as to guilt:
Do you think that because of your line of work that the
gossip or rumors that you might have experienced would have
any effect upon any opinion or judgments that you, yourself,
might have formed?
No, I really rather doubt it. There is always a possibility
that the presentation of evidence, as the Judge asked me,
might trigger something, but I don't seriously think it
As you have lived in the community throughout the recent
months, I take it you are stating that you have not at any
time formed any opinions as to Mr. Botham's guilt, or
developed any leanings toward that. Is that a fair statement
I don't know. That is an awful hard one to answer.
You know, I guess, as I say, I have discussed some things in
part of my conversations, and I have caught myself making
It's certainly of concern to all of us, because I would
anticipate as you hear more and more about, well, the events
which would form the basis of this case, there would be a
greater and greater tendency for it to flag things out of
your own memory and maybe trigger some of the responses you
I think that's a danger.
I don't know if you really answered me whether or not you
think at some point you either had an opinion or a leaning.
I guess in my own mind I don't know whether I-have an
opinion. In attempting to analyze it as I said I have,
because of the mis-speaking in one sense or other, I have
been shocked by it and really it's not based on any facts or
anything else. I would say this, I am probably not as
innocent as a baby at this point, and that is the only
comparison I can offer you. (3405-09)
Mr. Steinkirchner, in his attempt to be as honest as possible, has provided a graphic illustration of the exact reason why the Supreme Court, in Irvin v. Dowd, supra, recognized that mere assurances of impartiality, no matter how honestly presented, cannot be taken at face value, and must be weighed with the influence of the publicity on the community as a whole.
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